Brief of Amicus Curiae Aha Foundation in Support of The United States of America

Case 2:18-mc-51358-BAF ECF No. 2-1 filed 09/24/18 PageID.
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Miscellaneous Action No. 18-mc-51358

Criminal Action No. 17-cr-20274
Hon. Bernard A. Friedman
Mag. David R. Grand
_________________________________
United States of America,
Plaintiff,
v.
Jumana Nagarwala, et al.,
Defendants.
__________________________________
BRIEF OF AMICUS CURIAE AHA FOUNDATION IN SUPPORT OF
THE UNITED STATES OF AMERICA
_____________________________
Gregory Starner (NY Bar No. 4146601)

Samuel P. Hershey (NY Bar No. 5100854)
Ariel I. Oseasohn (NY Bar No. 5366174)
Mark Franke (NY Bar No. 5198999)
WHITE & CASE LLP
1221 Avenue of the Americas
New York, NY 10020
Tel: (212) 819-8200
Fax: (212) 354-8113
gstarner@whitecase.com
sam.hershey@whitecase.com
ariel.oseasohn@whitecase.com
mark.franke@whitecase.com
Counsel for Amicus Curiae AHA Foundation

Case 2:18-mc-51358-BAF ECF No. 2-1 filed 09/24/18 PageID.11 Page 2 of 26
Table of Contents
PRELIMINARY STATEMENT ................................................................................................ 1

FACTS ABOUT FGM ................................................................................................................ 3
I. FGM is a global scourge not confined to any one region or religion.................. 3
II. FGM inflicts lifelong physical, psychological and emotional trauma. ............... 5
III. In the United States, the practice of FGM is proliferating. ................................. 7
STANDARD OF REVIEW ........................................................................................................ 8
ARGUMENT .............................................................................................................................. 9
I. Because FGM is inextricably linked with interstate commerce, Congress was
authorized to enact Section 116 under the Commerce Clause. ....................................... 9
A. FGM frequently involves the interstate trafficking of young girls. ...... 10
B. FGM is an inherently commercial practice. .......................................... 12
II. Because FGM is a form of enslavement that offends core values enshrined in
U.S.-ratified treaties, Congress also drew authority to enact Section 116 from the
Treaty Clause. ............................................................................................................... 14
A. FGM is a form of slavery that defies the anti-slavery conventions
ratified by the United States Senate. ..................................................... 15
B. Congress was also authorized to pass Section 116 under the ICCPR’s
prohibition against sex-based violence. ................................................ 17
CONCLUSION ......................................................................................................................... 21
Table of Authorities
Page(s)
CASES
Bond v. United States, 134 S. Ct. 2077 (2014) ..............................................................................19
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ...................................................................8
Gonzalez v. Raich, 545 U.S. 1 (2005) ..................................................................................9, 12, 14
Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790 (1971).........................................................15
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186 (1968) .............................................15
Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383 (1979).............................................16
Medellin v. Texas, 552 U.S. 491 (2008) ........................................................................................14
Missouri v. Holland, 252 U.S. 416 (1920)......................................................................... 14-15, 20
United States v. Belfast, 611 F.3d 783 (11th Cir. 2010) ................................................................15
United States v. Gregg, 226 F.3d 253 (3d Cir. 2000) ......................................................................9
United States v. Lopez, 514 U.S. 549 (1995) .............................................................................9, 14
United States v. Lue, 134 F.3d 79 (2d Cir. 1998) ....................................................................15, 20
United States v. Morrison, 529 U.S. 598 (2000) .......................................................................8, 14
Wickard v. Filburn, 317 U.S. 111 (1942) ......................................................................................10
STATUTES AND RULES
18 U.S.C. § 116 ...................................................................................................................... passim
Fed. R. App. P. 37 ............................................................................................................................1
U.S. Const., Article I, § 8, cl. 3 ........................................................................................................9
U.S. Const., Article II, § 2, cl. 2 ..............................................................................................14, 19
U.S. Const. amend. X.....................................................................................................................20
U.S. Const. amend. XIII........................................................................................................... 15-16
MISCELLANEOUS
Committee on the Rights of the Child, CRC/C/15/Add. 10 (18 October 1993) ...........................19
ii
Convention on the Elimination of All Forms of Discrimination against Women,

1249 U.N.T.S. 13 (1979) ........................................................................................................19
Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989) .................................................19
Convention to Suppress the Slave Trade and Slavery of 1926, 60 L.N.T.S. 253
(1926) ................................................................................................................................15, 16
Forty-Sixth World Health Assembly, WHA46/1993/REC/3 (14 May 1993) ...............................20
International Covenant on Civil and Political Rights of 1976, Dec. 16, 1966, 999
U. N. T. S. 171 ...............................................................................................................2, 17, 18
Pub. L. 104–208, div. C, title VI, § 645(a), Sept. 30, 1996, 110 Stat. 3009–708 ............................8
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery of 1956, Sept. 7, 1956, 226
U.N.T.S. 3 ..........................................................................................................................15, 17
S. Exec. Rep. No. 102-23...............................................................................................................18
Vienna Declaration, World Conference on Human Rights, Vienna, 14-25 June

1993, U.N. Doc. A/CONF.157/24 (Part I) (1993) ...................................................................20
iii
PRELIMINARY STATEMENT
Female genital mutilation (“FGM”) is a human rights abuse that has victimized over 200
million women worldwide. 1 Although FGM is mostly confined to Africa, the Middle East and
Asia, as this case demonstrates, this brutal practice has achieved a global reach. In recognition
of this fact, in 1996, Congress enacted 18 U.S.C. § 116 (“Section 116”) so that the United States
could do its part to eradicate FGM. Yet Section 116 lay virtually dormant for 20 years, until this
case broke new ground as the first prosecution ever brought directly under that statute. It is in
just such novel circumstances that courts most need the assistance of an amicus curiae to “bring
to the attention of the Court relevant matter . . . [that] may be of considerable help to the Court.”
Fed. R. App. P. 37. And no one knows the facts of FGM better than proposed amicus curiae
AHA Foundation.
Ayaan Hirsi Ali, the founder of proposed amicus curiae, is herself a survivor of FGM.
This brave woman has triumphed over personal tragedy to develop a globally-renowned voice
that fights for the rights of women and draws attention to the inhumane practice of FGM. She
therefore applauds Congress for criminalizing FGM where too many states have failed to do so,
and the prosecutors in this case for combatting FGM where too many others have failed to act. 2
In light of the historic nature of this case, proposed amicus curiae respectfully seeks to assist the
Court by providing facts and information about FGM demonstrating that Congress acted within
its constitutional powers in enacting Section 116.
First, Section 116 falls squarely within Congress’s power to regulate interstate
commerce. FGM is an inherently commercial act. Data show that in most cases, FGM, like any
1
FGM is also commonly referred to as “FGM/C,” where the “C” stands for “cutting.”
2
About half of all states do not have laws criminalizing FGM. Michigan only adopted its anti-FGM law in
2017, after this case was initiated. See http://globalwomanpeacefoundation.org/2018/01/16/does-your-state-have-a-
law-against-fgm/
other medical procedure, is bought and paid for. Not only that, but for many communities that
practice FGM, FGM is not just a commercial transaction but an investment, as it is used to
increase the “bride price” of its victims. Additionally, in many cases (including this one), FGM
is an interstate activity, involving the trafficking of young girls across state, country and even
continental lines. Even in cases where FGM does not cross state lines or involve the exchange of
money for services, it has an impact on interstate commerce that Congress is empowered to
regulate.
Second, Congress was authorized to pass Section 116 pursuant to its constitutional power
to implement the international obligations enshrined in anti-slavery and anti-discrimination
treaties signed by the President and ratified by the Senate. FGM is a practice “similar to
slavery.” Among other things, FGM treats women like chattel, it brands them as property of
their husbands and it deprives them of their sexual freedom. These effects are all “badges and
incidents of slavery” that subjugate women. Moreover, the International Covenant on Civil and
Political Rights of 1976 (“ICCPR”) directs Congress to take federal action to ban sex-based
violence like FGM. That is exactly what Section 116 does.
For these reasons, the Court should hold that Congress had the constitutional authority to
enact Section 116, deny Defendants’ Motion to Dismiss Counts One, Two, Three, Four and Five
of the Indictment (D.I. 307) and grant long-deferred justice to Defendants’ victims.
2
FACTS ABOUT FGM
I. FGM is a global scourge not confined to any one region or religion.
The World Health Organization (“WHO”) defines FGM as an array of “procedures that
intentionally alter or cause injury to the female genital organs for non-medical reasons.” 3
According to WHO, there are four types of FGM: 4
• Type 1 (often referred to as “clitoridectomy”): The partial or total removal of the

clitoris or, in rare cases, only the prepuce (the fold of skin surrounding the
clitoris).
• Type 2 (often referred to as “excision”): The partial or total removal of the

clitoris and the labia minora, with or without excision of the labia majora.
• Type 3 (often referred to as “infibulation”): The narrowing of the vaginal

opening through the creation of a covering seal formed by cutting and
repositioning the labia minora, or labia majora, sometimes through stitching, with
or without removal of the clitoris. 5
• Type 4: All other harmful procedures to the female genitalia for non-medical
purposes, such as pricking, piercing, incising, scraping and cauterizing the genital
area.
As one would expect of a procedure whose practice spans the globe, the reasons for
inflicting FGM are manifold. 6 Some communities practice FGM out of a respect for tradition or
as a social convention. Others treat it as a rite of passage for prepubescent girls. Still others
mistakenly believe that FGM somehow enhances fertility. Many communities see FGM as key
to marriageability, as they believe it ensures virginity, chastity and faithfulness. 7 And for some
3
http://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation.
4
Id.
5
Victims of infibulation must often undergo “deinfibulation,” i.e., the surgical re-opening of the sealed
vaginal orifice, to return such basic functions as menstruation, intercourse and childbirth.
6
These and other reasons, as assessed by WHO, are provided at
http://www.who.int/reproductivehealth/publications/health-care-girls-women-living-with-FGM/en/
7
As WHO found, “There is often an expectation that men will marry only women who have undergone
FGM. The desire and pressure to be married, and the economic and social security that may come with marriage,
can perpetuate the practice in some settings.”
http://apps.who.int/iris/bitstream/handle/10665/272429/9789241513913-eng.pdf?ua=1.
3
communities, such as the Dawoodi Bohra, of which Defendants are members, FGM is a matter
of religious practice.
Yet despite popular conceptions, FGM is not confined to any one region or religion.
Rather, UNICEF estimates that there are more than 200 million girls and women 8 alive today in
about 30 countries who have been victims of FGM. 9 As reflected in the below table and map,
the vast majority of these victims—though by no means all—are located in Africa, Asia and the
Middle East.
Though regionally concentrated, these countries reflect remarkable diversity. For
example, Sudan and Mali are majority Muslim countries, 10 while Ethiopia 11 and Eritrea 12 are
majority Christian countries. Egypt and Iraq are majority Arab, while Tanzania and Nigeria are
8
The ages of the victims of FGM vary, but FGM is usually performed between infancy and adolescence.
http://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
9
https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf
10
https://www.worldatlas.com/articles/islamic-countries-in-the-world.html.
11
https://www.britannica.com/place/Ethiopia/Religion.
12
https://www.state.gov/documents/organization/208358.pdf.
4
populated by sub-Saharan Africans. The practice of FGM spans continents—from Guinea in
west Africa to Iraq in Asia. Indeed, in certain Asian countries, such as Malaysia, approximately
93% of girls have reportedly undergone FGM. 13
Thus, though Defendants in this case are Bohra Muslims (a religious community that
hails from India), statistics prove that no one group or territory can lay claim to this practice.
Rather, and tragically, FGM afflicts diverse races and religions all across the world. 14
II. FGM inflicts lifelong physical, psychological and emotional trauma.
Regardless of where and by whom FGM is practiced, one fact remains consistent: FGM
poses material health risks to its victims, and those risks only increase as the manner of FGM
becomes more severe. 15 Short-term consequences can include pain, bleeding, fever, infections
such as tetanus, problems healing, injury to surrounding genital tissue, and shock. 16 Long-term
consequences can be worse: urinary problems (painful urination, urinary tract infections);
vaginal problems (discharge, itching, bacterial vaginosis and other infections); menstrual
problems (painful menstruation, difficulty in passing menstrual blood); scar tissue (including
keloid); sexual problems (pain and decreased satisfaction from intercourse); increased risk of
childbirth complications (delivery complications, bleeding, caesarean section) and newborn
deaths. 17 Any of these effects, if not properly treated, can lead to the death of the FGM victim. 18
13
See https://www.aljazeera.com/news/asia-pacific/2015/03/female-genital-cutting-thailand-south-
150309083458995.html
14
Nor is FGM merely a problem for the poor. In a survey of 385 female respondents from the Bohra
community, 84% reported middle or upper-middle class incomes; 80% had suffered FGM. See
https://sahiyo.files.wordpress.com/2018/04/sahiyo_02-06-18.pdf.
15
https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf
16
Id.
17
Id.
18
Id.
5
The physical harm of FGM is exacerbated by psychological complications, including low
self-esteem, anxiety, depression, and post-traumatic stress disorder. 19 In fact, a 2017 study found
that women and girls who have undergone FGM endure “excessive risk of suffering from
negative psychosomatic consequences,” loss of “sexual satisfaction” 20 and totalizing
depression. 21 Further, a 2018 study found that “regardless of the level of the physical
invasiveness, almost all women” who had experienced FGM “reported having felt intense fear
and/or helplessness”—a trauma that endures for life. 22 While the more severe forms of mental
damage tend to manifest in girls who have undergone FGM types one, two and three, 23
“[r]espondents who underwent a milder form of [FGM] also reported post-traumatic
symptom[s],” leading to the inexorable conclusion that every form of FGM “is associated with
chronic mental health problems, even many years after the event.” 24
Seeking to dismiss the evidence of FGM’s physical and psychological damage, defenders
of FGM often compare it to the common, harmless practice of male circumcision. But this
comparison is misplaced.
As an initial matter, reputable organizations, such as the American Academy of
Pediatrics, have come out in support of male circumcision, stating that “the health benefits of
newborn male circumcision outweigh the risks[.]” 25 In contrast, as noted by WHO, FGM offers
19
Id.
20
Id.
21
Mohammad-Hoseein Biglu and Alireza Farnam. “Impact of Women Circumcision on Mental Health.”
2017.
22
Anke Kobach, Martina Ruf-Leuschner, Thomas Elbert. “Psychopathological sequelae of female genital
mutilation and their neuroendocrinological associations.” 2018.
23
Id.
24
Erick Vloeberghs, Anke van der Kwaak, Jeroen Knipscheer & Maria van den Muijsenbergh. “Coping and
chronic psychosocial consequences of female genital mutilation in the Netherlands.” 2011.
25
http://pediatrics.aappublications.org/content/pediatrics/early/2012/08/22/peds.2012-1989.full.pdf
6
“[n]o health benefits, only harm,” as it “involves removing and damaging healthy and normal
female genital tissue, and interferes with the natural functions of girls’ and women’s bodies.” 26
No reputable organization has claimed otherwise. 27 Nor is there any safe or harmless way to
practice FGM. Although Type 4 (as discussed above) is the least physically invasive form of
FGM, it can still have both physical and psychological repercussions. 28 Moreover, the pain and
damage from the pin prick is impossible to measure. 29
FGM is, therefore, in all its forms, an act of intentional physical and psychological
violence against women, the harms of which are documented and real.
III. In the United States, the practice of FGM is proliferating.
According to the Center for Disease Control and Prevention, “Approximately 513,000
women and girls in the United States were at risk for [FGM] or its consequences in 2012,”—
more than twice the CDC’s estimate in 2000 and more than three times its estimate in 1990. 30
For girls younger than 18, since 1990, the CDC’s estimate has more than quadrupled. 31
While the estimated increase in incidents of FGM “was wholly a result of rapid growth in
the number of immigrants from [FGM]-practicing countries living in the United States,” most of
the victims were second-generation Americans, i.e., girls born to parents already living in this
26
Id.
27
Additionally, unlike male circumcision, FGM is not prescribed by the texts of any of the world’s major
religions. For a discussion of the possible non-religious origins of FGM in majority Muslim communities, see
https://med.virginia.edu/family-medicine/wp-content/uploads/sites/285/2017/01/Llamas-Paper.pdf.
28
https://www.gatestoneinstitute.org/10585/female-genital-mutilation-american-muslim (noting that “[t]he
whole intent of [a clitoral prick] is ceremonially to desexualize women and place their bodies under patriarchal
control.”
29
Id.
30
https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situations/fgmutilation.pdf
31
Id.
7
country. 32 Thus, the number of victims of FGM in the United States is growing rapidly, and
those victims are, by and large, not immigrants but U.S. citizens.
These facts, taken together, mean that young girls, most of whom are U.S. citizens, are
increasingly subjected to a practice that confers life-long physical, psychological and emotional
trauma. It is in this context that Section 116 was enacted and the present case was brought.
STANDARD OF REVIEW
Where, as here, a facial challenge to a statute’s constitutionality is mounted, courts must
review the challenged statute with a “presumption of constitutionality in mind” because “[d]ue
respect for the decisions of a coordinate branch of Government demands that [courts] invalidate
a congressional enactment only upon a plain showing that Congress has exceeded its
constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000). Importantly, in
conducting this analysis, a court must remember that “because [courts] never require a legislature
to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes
whether the conceived reason for the challenged distinction actually motivated the legislature.”
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). Thus, this Court need not refer
solely to the constitutional bases for Section 116 referred to in the Congressional record. Rather,
any legitimate constitutional basis that can support the statute must be accepted as grounds for
finding the statute constitutional. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. at 315. 33
32
https://www.prb.org/us-fgmc/
33
It is nonetheless worth noting that in enacting Section 116, Congress relied on, among other things, the
Commerce Clause and the Treaty Clause—the same sources of authority on which amicus curiae relies. See Pub. L.
104–208, div. C, title VI, § 645(a), Sept. 30, 1996, 110 Stat. 3009–708.
8
ARGUMENT
Congress derived the authority to enact Section 116 under at least two enumerated
powers: the Congressional power to regulate interstate commerce, and Congress’s power to
legislate under the Treaty Clause.
As to interstate commerce, data demonstrate that FGM is a commercial practice in at
least three regards: (i) cutters are typically paid for their services; (ii) even when not paid, the
actions of cutters have a substantial effect on commerce; and (iii) the act of cutting is used to
increase the “bride price” that girls can fetch at marriage. Moreover, FGM frequently involves
travel, by both victims and cutters, across state, country and even continental borders.
As to the Treaty Clause, various conventions against slavery empower Congress to
regulate FGM—an archetypal badge and incident of slavery. Moreover, the ICCPR explicitly
contemplates legislation aimed at protecting women and children from abuse such as FGM, and
directs Congress to take appropriate action in furtherance of this goal.
I. Because FGM is inextricably linked with interstate commerce, Congress

was authorized to enact Section 116 under the Commerce Clause.
Among Congress’s enumerated powers is the power to “regulate Commerce . . . among
the several States.” U.S. Const., art. I, § 8, cl. 3. In determining the constitutionality of a
purported use of this power, a court must only be satisfied that there exists a “rational basis” to
link the regulated activity and an effect on commerce. Gonzalez v. Raich, 545 U.S. 1, 22 (2005).
This review is inherently deferential. See United States v. Gregg, 226 F.3d 253, 261 (3d Cir.
2000). Indeed, Congress need not demonstrate an actual link between the regulated activity and
commerce. Id. Rather, as the Supreme Court re-affirmed in United States v. Lopez, 514 U.S.
549 (1995), the court must look beyond a particular defendant’s actions to determine how the
9
aggregate of such activities, of which the defendant’s act is but one part, may affect interstate
commerce. Wickard v. Filburn, 317 U.S. 111, 127-28 (1942).
With these standards in mind, it is clear that Congress acted within its authority in
enacting Section 116. Data show that FGM is an inherently commercial transaction involving
the transportation of victims across state and country lines—the exact type of activity that the
Commerce Clause empowers Congress to regulate.
A. FGM frequently involves the interstate trafficking of young girls.
As this case demonstrates, FGM frequently involves the involuntary, cross-border
transportation of young girls. Here, the majority of victims were spirited across state lines—
specifically, from Minnesota and Illinois to Michigan—to be cut by Defendants. 34 This case is
not atypical. Sufficient data have been gathered to demonstrate that in many cases, if not most,
FGM involves the interstate, inter-country and even intercontinental transportation of victims.
This phenomenon is so common that it has given rise to the term “vacation cutting,” a
phrase popularized by the United Nations Population Fund (the “UNFPA”) 35 in reference to the
prevalence of young girls being transported abroad during school holidays to undergo FGM.
The UNFPA notes that “July, August and September are something of a ‘cutting season’ for
many girls around the world, when the break from school means they have time to undergo, and
recover from, FGM.” 36 But the school break affords girls time not only for the surgery and
recovery, but also for “travel from abroad to undergo the procedure.” This data is corroborated
by UNFPA specialist Ahmed Jama, who notes that “girls travel from the West and from Djibouti
34
See Third Superseding Indictment, D.I. 334.
35
Formerly the “United Nations Fund for Population Activities,” the organization has kept its acronym.
36
https://www.unfpa.org/cuttingseason.
10
to be cut” in Somalia. A cutter in Africa confirms this statement, asserting that her “peak
season” is July and August, “when parents bring their children to be cut.” 37
These parents are coming from, among other places, the United States—a fact well
known to U.S. authorities. For this reason, in June 2018, U.S. Immigration and Customs
Enforcement (ICE) launched a special program specifically aimed at combatting vacation
cutting. Called “Operation Limelight” and designed after a similar UK program, the initiative
started at New York’s John F. Kennedy International Airport and has since expanded to at least
10 other cities with large international airports—the channels to the foreign countries where
FGM is performed. 38 In ICE’s words, the program is “designed to bring awareness to [FGM]
and prevent young girls from being subjected to FGM.” 39 Specifically, “[t]he initiative aims to
inform passengers traveling to high-prevalence countries about the U.S. laws governing FGM
and the potential criminal, immigration, and child protective consequences of transporting a child
to another country for the purpose of FGM.” 40 There is no question among U.S. law
enforcement, therefore, that FGM frequently involves interstate travel.
Moreover, as with any commercial transaction, it is not only the victims/purchasers who
travel for FGM: the cutters/providers travel as well. The Intelligence Operations and Analysis
Division of the Canada Border Services Agency (the “CBSA”), the Canadian analogue to ICE,
has confirmed that cutters frequently come to Canada from abroad. 41 The CBSA has further
found that “[o]nce in Canada, the practitioners are typically called into homes to perform the
37
See also http://www.chicagotribune.com/lifestyles/health/ct-genital-cutting-chicago-met-20170612-
story.html (noting that the most frequent cases of FGM seen in the United States involve girls who were either cut
before they moved here or “while they were sent abroad—often called ‘vacation cutting.’”
38
https://www.ice.gov/news/releases/ice-leads-effort-prevent-female-genital-mutilation-newark-airport
39
Id.
40
https://www.ice.gov/news/releases/ice-pilots-fgm-outreach-program-jfk-airport
41
https://globalnews.ca/news/3602227/female-genital-mutilation-canada-border-officers-warned/
11
procedures . . . us[ing] razor blades, shards of glass, strips for binding legs as well as ash, oil and
herbal mixtures.” 42 They come, in other words, prepared to perform FGM.
The interstate aspect of FGM is further confirmed by Mariya Taher, a co-founder of the
anti-FGM non-profit Sahiyo and, like Defendants, a member of the Dawoodi Bohra community.
Taher underwent vacation cutting when her parents took her to India as a child. 43 Her sister,
however, underwent FGM in the United States. 44 As the data and Taher’s anecdotal experience
show, the interstate travel involved with FGM is so pervasive as to flow in both directions.
Finally, regulation of FGM, or lack thereof, inevitably affects the extent to which
vacation cutting and related interstate commerce takes place. It therefore falls within the
Commerce Clause’s purview. See Gonzalez v. Raich, 545 U.S. at 22.
B. FGM is an inherently commercial practice.
In addition to the interstate aspect of FGM, in several key ways, FGM is inextricably
intertwined with commerce.
First and most obviously, as one would expect of any surgical procedure, FGM is a
commercial transaction generally bought and paid for. This is especially so in cases requiring
cutters to travel. FGM experts say that families often “pool resources to bring in a cutter from
abroad to mutilate girls in groups,” which requires the families to “raise the funding to pay for
42
https://globalnews.ca/news/3602227/female-genital-mutilation-canada-border-officers-warned/
43
https://abcnews.go.com/US/underground-american-woman-underwent-female-genital-mutilation-
forward/story?id=39728421
44
Id.
12
someone to come from overseas.” 45 Even when travel is not involved, cutters acknowledge that
cutting is their livelihood, and have spoken frankly about the income cutting generates. 46
FGM is also linked to commerce in one further insidious way: as a means of increasing
the money received by victims’ families upon marriage. This is not an incidental feature. In
many communities, custom dictates that the parents of the bride receive a “bride price,” i.e., a
payment in exchange for their daughters, upon marriage. And the benefit that FGM can offer in
increasing a daughter’s “bride price” is a crucial incentive to subject her to FGM.
The data bear witness to this phenomenon. As reported in a 2013 study, some
communities perform FGM as “a pre-condition for marriage” because circumcised girls are more
marriageable and attract better bride prices[.]” 47 For example, in Kenya, “a dowry is paid by the
groom’s family . . . [so] girls are seen as a valuable asset to their families, if they can be offered
for marriage in the ‘right’ condition,” i.e., having been cut. 48 The same is true in Ethiopia, where
families report worrying that uncut daughters will never become marriageable. 49 From this data,
experts have concluded that “[f]emale genital mutilation [is] an economic transaction as much as
a cultural tradition.” 50
45
https://www.theguardian.com/society/2014/feb/06/female-genital-mutilation-foreign-crime-common-uk
46
https://www.theguardian.com/society/2014/feb/07/female-genital-mutilation-kenya-daughters-fgm. See
also https://www.cnn.com/2017/12/04/opinions/stopping-female-genital-mutilation-opinion-lemmon/index.html
(noting that cutting in Tanzania pays “30,000 Tanzanian shillings (roughly $14) [per] girl.”
47
https://www.younglives.org.uk/sites/www.younglives.org.uk/files/YL-WP93_Boyden.pdf.
48
https://www.theguardian.com/society/2014/feb/07/female-genital-mutilation-kenya-daughters-fgm
49
https://www.worldvision.org.uk/files/4814/0068/7160/Exploring_the_links_FGM_cutting_and_early_marriage.pdf
50
See https://www.cnn.com/2017/12/04/opinions/stopping-female-genital-mutilation-opinion-
lemmon/index.html; see also id. (quoting Seleiman Bishagazi, the chairman of Kipunguni Knowledge Center, as
stating that families “us[e] FGM as a source of income because people would say, ‘I will build a house after my
daughter goes through this’ . . . They were using girls as capital.” See also the World Vision study referenced above
(finding that “[p]arents will procure [FGM] for their young daughters to enhance their marriageability”).
13
Even when FGM is not paid for, the commercial element of FGM ripples beyond the
initial cutting. Many girls who suffer the intended effects of FGM—to say nothing of those who
suffer medical and psychological complications—have no choice but to engage in further
commercial activity to undo those harms. This is particularly true of women who have suffered
infibulation, who must seek further surgical intervention to restore their ability to engage in such
basic functions as menstruation, intercourse and childbirth. But other victims, too, will seek
medical or psychological help to cope with or undo the effects of FGM. The commercial
element of FGM is thus not limited to the act itself: “[i]t also includes the procedure of re-
infibulation” and related procedures “at any time in a woman’s life.” 51
All of these elements—the payment to the cutters, the subsequent medical care for the
victims, and the increased bride price—make FGM an inherently commercial activity. 52 It is,
therefore, one that Congress is empowered to regulate. 53
II. Because FGM is a form of enslavement that offends core values

enshrined in U.S.-ratified treaties, Congress also drew authority to
enact Section 116 from the Treaty Clause.
Article II, Section 2 of the U.S. Constitution provides that treaties with foreign countries
become binding on the United States following ratification by the Senate. U.S. Const., art. II, §
2, cl. 2; Medellin v. Texas, 552 U.S. 491, 504-05 (2008). Once a treaty is ratified, Congress may
pass legislation to implement its terms, and “[i]f the treaty is valid there can be no dispute about
the validity of [such] statute . . . as a necessary and proper means to execute the powers of the
51
http://www.who.int/reproductivehealth/publications/health-care-girls-women-living-with-FGM/en/
52
In the alternative, at the very least, FGM has a substantial effect on interstate commerce, such that
Congress has a rational basis to regulate it. See Gonzales v. Raich, 545 U.S. 1, 22, 125 S. Ct. 2195, 2209 (2005).
53
These facts demonstrate that there is no merit to Defendants’ claim that “FGM is not an economic or
commercial activity.” See Defs. Br., D.I. 307, at 47. Defendants’ arguments to the contrary are unavailing, as they
rely on cases that have no ostensible relationship with commerce or interstate activity. See Defs. Br. at 33-55
(relying on United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), which struck down legislation
regulating generic violence against women, and United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), which
struck down legislation regulating mere possession of firearms within school zones).
14
Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920). Moreover, to be constitutional,
such legislation must only be “rationally related” to the treaty, meaning that it is “‘convenient, or
useful or conducive.’” United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010) (quoting
United States v. Comstock, 560 U.S. 126, 133-34 (2010)); see also United States v. Wang Kun
Lue, 134 F.3d 79, 84 (2d Cir. 1998).
Here, a series of anti-slavery conventions and the ICCPR, all of which have been ratified
by the United States Senate, empowered Congress to enact Section 116.
A. FGM is a form of slavery that defies the anti-slavery conventions ratified

by the United States Senate.
On March 21, 1929, the United States Senate ratified the Convention to Suppress the
Slave Trade and Slavery of 1926 (the “Slavery Convention”). This act was followed on
December 6, 1967, with the Senate’s ratification of the Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956
(the “Supplementary Convention” and with the Slavery Convention, the “Anti-Slavery
Treaties”). Together, the Anti-Slavery Treaties marked a firm commitment to eradicate slavery
and practices “similar to slavery” wherever they appeared. 54
At the heart of the Anti-Slavery Treaties lies the mandate to “bring about, progressively
and as soon as possible, the complete abolition of slavery in all its forms” (emphasis added). 55
This language tracks authority granted to Congress under the Thirteenth Amendment to
“determine what are the badges and the incidents of slavery, and . . . translate that determination
into effective legislation.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440, 88 S. Ct. 2186,
2204 (1968). While not determinative of Congress’s power to act under the Anti-Slavery
54
Supplementary Convention, Preamble, Sept. 7, 1956, 226 U.N.T.S. 3.
55
Slavery Convention, Preamble, 60 L.N.T.S. 253 (1926) (emphasis added).
15
Treaties, Congress’s authority under the Thirteenth Amendment is instructive. As the Supreme
Court has held, “badges and incidents of slavery” can take many forms, including private actions
displaying “class-based, invidiously discriminatory animus . . . aim[ed] at a deprivation of the
equal enjoyment of rights secured by the law to all.” Griffin v. Breckenridge, 403 U.S. 88, 102,
91 S. Ct. 1790, 1798 (1971). In other words, the Supreme Court has held that “forms” of slavery
need not be literal enslavement, nor must they be perpetrated by state actors. This Thirteenth
Amendment jurisprudence accords with the Anti-Slavery Treaties, which identify the most
common “form” of slavery as “the status or condition of a person over whom any or all of the
powers attaching to the right of ownership are exercised.” 56 And the effort to control and claim
ownership over women is the hallmark of FGM.
First, as noted above, FGM is often used to increase the victim’s value as property to be
sold to her husband. In altering the victim’s body to procure the highest marriage price, FGM
treats the victim not as a human being, but as chattel. Such treatment is, definitionally, a “form
of slavery.” Second, FGM permanently disfigures the victim’s body, marking her as “fixed.”
Such physical branding—a literal “badge of slavery”—is the indelible signature of bondage.
Third, as the Supreme Court has recognized, ownership of property is characterized primarily by
the right to exercise control over such property and exclude others from its enjoyment. See
Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S. Ct. 383, 391 (1979). The primary
purpose of FGM is to control a woman’s sexuality by removing her ability to enjoy sexual
intercourse. As noted above, that lack of enjoyment is meant to increase the victim’s chastity
and virtue—in other words, to keep her faithful to her husband. FGM thus robs victims of their
bodily integrity, autonomy and self-determination. In other words, it turns them into slaves.
56
Slavery Convention, Art. 1.1, 60 L.N.T.S. 253 (1926) (emphasis added).
16
If there were any doubt as to the applicability of the Anti-Slavery Treaties to FGM, it is
dispelled by Article 5 of the Supplementary Convention, which provides, in pertinent part, that
“the act of mutilating, branding or otherwise marking a slave or a person of servile status in order
to indicate his status, or as a punishment, or for any other reason . . . shall be a criminal offence
under the laws of the States Parties to this Convention” (emphasis added). 57 This broad language
plainly covers FGM—a practice that brands women as sexually subservient to their husbands. 58
FGM is thus a clear “badge of slavery,” or, at minimum, a practice “similar to slavery,”
prohibited by both Anti-Slavery Treaties. Congress, having ratified these treaties, was entitled to
enforce them through Section 116 and ban FGM.
B. Congress was also authorized to pass Section 116 under the ICCPR’s
prohibition against sex-based violence.
The ICCPR was ratified by the United States on June 8, 1992. The ICCPR is not self-
executing, and may therefore be effectuated by Congress through appropriate, constitutionally
permissible legislation. Article 2(2) of the ICCPR gives the following mandate: “Where not
already provided for by existing legislat[ion] . . . each [party] to the [ICCPR] undertakes to take
the necessary steps . . . to adopt such laws or other measures as may be necessary to give effect
to the rights recognized [herein].” 59 That is precisely what Section 116 does.
Article 24 of the ICCPR provides, in pertinent part, “Every child shall have, without any
discrimination as to . . . sex . . . the right to such measures of protection as are required by his
57
Supplementary Convention, Art. 5, Sept. 7, 1956, 226 U.N.T.S. 3.
58
Article 5 of the Supplementary Convention applies to “countr[ies] where the abolition or abandonment of
slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete.”
Supplementary Convention, Article 5. “[I]nstitutions and practices mentioned in Article 1” include “[a] woman,
without the right to refuse, [being] promised or given in marriage on payment of a consideration in money or in kind
to her parents” and “[t]he husband of a woman, his family, or his clan, [having] the right to transfer her to another
person for value received or otherwise.” Supplementary Convention, Article 1. As discussed above, all of these
conditions exist in the communities that practice FGM. In fact, they are, in many cases, the very reason FGM is
performed. See Section I.B., supra.
59
ICCPR, Art. 2(2), Dec. 16, 1966, 999 U. N. T. S. 171.
17
status as a minor, on the part of his family, society and the State.” 60 As discussed above, FGM
denies children this right by inflicting on them life-altering violence on the basis of their sex.
Accordingly, Section 116 is a facially valid means of effectuating the United States’ commitment
under ICCPR Article 24 to protect children from sex-based violence. 61
Defendants offer two arguments as to why Congress could not rely on Article 24 of the
ICCPR in enacting Section 116. Neither has merit.
First, Defendants point to a reservation Congress placed on ICCPR Article 7, limiting the
enforcement of Article 7 to acts committed by state entities. See S. Exec. Rep. No. 102-23, at 7,
12 (1992) (limiting the application of Article 7 to “cruel and unusual treatment or punishment
prohibited by the Fifth, Eighth and/or Fourteenth Amendments”); Defs. Br. at 28-29 (“a private
individual cannot deprive another of a right secured by the Fifth, Eighth or Fourteenth
Amendments”). But regardless of whether Defendant’s argument has any merit as to Article 7, it
has no bearing on Article 24. Not only does Article 24 have no equivalent reservation, but
Defendants’ argument only shows that if the Senate wanted to place a similar restriction on
Article 24, it knew how to do so. Nor does the language of Article 24, which contemplates acts
by an individual’s “family,” allow for such a limitation absent clear Congressional expression.
Second, Defendants claim that Section 116 breaches a general clarification Congress
made regarding the ICCPR, which provides that any statute effectuating the ICCPR should not
“alter the constitutional balance of authority between the State and Federal governments.” See S.
Exec. Rep. No. 102-23, at 18 (1992); Defs. Br. at 31. Defendants’ argument presupposes that
60
ICCPR, Art. 24, Dec. 16, 1966, 999 U. N. T. S. 171.
61
The ICCPR also grants protection against sex-based violence to all women, regardless of age. See, e.g.,
ICCPR, Art. 2.1, Dec. 16, 1966, 999 U. N. T. S. 171; ICCPR, Art. 26, Dec. 16, 1966, 999 U. N. T. S. 171.
18
Congress’s treaty power is constitutionally limited to matters not under states’ jurisdiction, and
Section 116 exceeds such limitation. Defendants are wrong on both counts.
The plain language of Article II, Section 2 of the Constitution places no limitations on
Congress’s treaty power. For that reason, the Supreme Court has consistently refused to read
such limitations into Article II, Section 2. At most, the Supreme Court has intimated, in dicta,
that treaty-implementing legislation may be disfavored where “no apparent interests of the
United States Congress or the community of nations” are involved. See Bond v. United States,
134 S. Ct. 2077, 2093 (2014).
Here, there is no doubt that FGM is a grave concern to the community of nations. As
evidence, one need only look to the myriad international conventions—many of which the
United States is a party to—aimed at eradicating FGM:
• The United Nations committee responsible for implementing the Convention on

the Elimination of All Forms of Discrimination Against Women (the “CEDAW”)
has stated that FGM is a form of violence against women and girls that causes
severe health and other adverse consequences. Accordingly, the committee has
recommended that all state parties take necessary measures to eradicate the
practice of FGM. 62 The United States signed the CEDAW on July 17, 1980.
• The Convention on the Rights of the Child, 1989 (“CRC”) mandates that
governments abolish “traditional practices prejudicial to the health of children.” 63
The United States signed the CRC on February 16, 1995.
• The Concluding Observations of the Committee on the CRC: Sudan (1993)

explicitly directs governments to enact legislation that will abolish the practice of
FGM, defining such practice as a violation of children’s rights. 64
• On May 12, 1993 the World Health Organization, with the support of the United
States, adopted a resolution emphasizing the need to eliminate harmful traditional
practices affecting the health of women and children. This resolution explicitly
62
Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 13 (1979).
63
Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989).
64
Committee on the Rights of the Child, CRC/C/15/Add. 10 (18 October 1993).
19
cited FGM as a practice restricting “the attainment of the goals of health,

development, and human rights for all members of society.” 65
• In 1993, the Vienna Declaration of the World Conference on Human Rights held
that FGM constitutes an egregious international human rights violation. 66
Furthermore, even if the treaty power were constitutionally limited in the way Defendants
suggest (and it is not), Section 116 does not alter the constitutional balance of authority between
the State and Federal governments. In United States v. Wang Kun Lue, a case virtually on all
fours with the present facts, the Court of Appeals for the Second Circuit examined a conviction
under a federal statute criminalizing hostage-taking, 18 U.S.C. §1203, which had been enacted in
furtherance of the International Convention Against the Taking of Hostages, Dec. 18, 1979,
T.I.A.S. No. 11,081 (the “Hostage-Taking Convention”). United States v. Wang Kun Lue, 134
F.3d 79 (2d Cir. 1997). The defendant in Lue argued that the federal statute under which he was
convicted “must be struck down because it impermissibly invades the authority of the states in
violation of the Tenth Amendment.” United States v. Wang Kun Lue, 134 F.3d at 84. The
Second Circuit disagreed. It noted that, while the Tenth Amendment preserves certain powers to
the States, matters of “important international interest” remain suitable subjects for legislation by
Congress. Lue at 85. Finding that hostage-taking constitutes a “grave concern to the
international community,” the Second Circuit upheld Congress’s right to give legislative effect to
the Hostage-Taking Convention and affirmed defendant’s conviction. Lue at 87. 67
65
Forty-Sixth World Health Assembly, WHA46/1993/REC/3 (14 May 1993).
66
Vienna Declaration, World Conference on Human Rights, Vienna, 14-25 June 1993, U.N. Doc.
A/CONF.157/24 (Part I) at 20 (1993).
67
As the Second Circuit has recognized, Missouri v. Holland, which Defendants also purport to rely on, is
“not to the contrary.” See United States v. Wang Kun Lue at 85 (citing Holland for the proposition that when “an
important national interest [is] at stake . . . no invisible radiation from the general terms of the Tenth Amendment
would require invalidation of” a Congressional act defending that interest).
20
The long list of international treaties and resolutions listed above leaves no doubt that
FGM is a matter of “grave international concern” within the meaning of Lue. Accordingly,
Congress acted with authority under ICCPR Articles 2(2) and 24 in enacting Section 116.
CONCLUSION
For the foregoing reasons, amicus curiae AHA Foundation urges this Court to hold that
Congress had the constitutional authority to enact Section 116 and deny Defendants’ Motion to
Dismiss Counts One, Two, Three, Four and Five of the Indictment.
Respectfully submitted,
s/ Mark Franke
Gregory Starner (NY Bar No. 4146601)
Samuel P. Hershey (NY Bar No. 5100854)
Ariel I. Oseasohn (NY Bar No. 5366174)
Mark Franke (NY Bar No. 5198999)
WHITE & CASE LLP
1221 Avenue of the Americas
New York, NY 10020
Tel: (212) 819-8200
Fax: (212) 354-8113
gstarner@whitecase.com
sam.hershey@whitecase.com
ariel.oseasohn@whitecase.com
mark.franke@whitecase.com
Counsel for Amicus Curiae AHA Foundation
21
CERTIFICATE OF SERVICE
I hereby certify that on September 24, 2018, I electronically filed the foregoing document
with the Clerk of Court using the ECF system, which will send notification of such filing to all
parties in this case. The foregoing document was also sent to all parties in this case via email.
s/ Mark Franke
Mark Franke
22

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Case 2:18-mc-51358-BAF ECF No. 2-1 filed 09/24/18 PageID.

UNITED STATES DISTRICT COURT

Miscellaneous Action No. 18-mc-51358

Jumana Nagarwala, et al.,

Gregory Starner (NY Bar No. 4146601)

Counsel for Amicus Curiae AHA Foundation

PRELIMINARY STATEMENT ................................................................................................ 1

Bond v. United States, 134 S. Ct. 2077 (2014) ..............................................................................19

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ...................................................................8

Gonzalez v. Raich, 545 U.S. 1 (2005) ..................................................................................9, 12, 14

Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790 (1971).........................................................15

Medellin v. Texas, 552 U.S. 491 (2008) ........................................................................................14

Missouri v. Holland, 252 U.S. 416 (1920)......................................................................... 14-15, 20

United States v. Lopez, 514 U.S. 549 (1995) .............................................................................9, 14

United States v. Lue, 134 F.3d 79 (2d Cir. 1998) ....................................................................15, 20

United States v. Morrison, 529 U.S. 598 (2000) .......................................................................8, 14

Wickard v. Filburn, 317 U.S. 111 (1942) ......................................................................................10

STATUTES AND RULES

18 U.S.C. § 116 ...................................................................................................................... passim

Fed. R. App. P. 37 ............................................................................................................................1

U.S. Const., Article I, § 8, cl. 3 ........................................................................................................9

U.S. Const., Article II, § 2, cl. 2 ..............................................................................................14, 19

U.S. Const. amend. X.....................................................................................................................20

U.S. Const. amend. XIII........................................................................................................... 15-16

Convention on the Elimination of All Forms of Discrimination against Women,

Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989) .................................................19

Forty-Sixth World Health Assembly, WHA46/1993/REC/3 (14 May 1993) ...............................20

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

S. Exec. Rep. No. 102-23...............................................................................................................18

Vienna Declaration, World Conference on Human Rights, Vienna, 14-25 June

its constitutional powers in enacting Section 116.

to implement the international obligations enshrined in anti-slavery and anti-discrimination

violence like FGM. That is exactly what Section 116 does.

FACTS ABOUT FGM

I. FGM is a global scourge not confined to any one region or religion.

According to WHO, there are four types of FGM: 4

• Type 1 (often referred to as “clitoridectomy”): The partial or total removal of the

• Type 2 (often referred to as “excision”): The partial or total removal of the

• Type 3 (often referred to as “infibulation”): The narrowing of the vaginal

Though regionally concentrated, these countries reflect remarkable diversity. For

populated by sub-Saharan Africans. The practice of FGM spans continents—from Guinea in

93% of girls have reportedly undergone FGM. 13

II. FGM inflicts lifelong physical, psychological and emotional trauma.

childbirth complications (delivery complications, bleeding, caesarean section) and newborn

The physical harm of FGM is exacerbated by psychological complications, including low

negative psychosomatic consequences,” loss of “sexual satisfaction” 20 and totalizing

“[r]espondents who underwent a milder form of [FGM] also reported post-traumatic

As an initial matter, reputable organizations, such as the American Academy of

damage from the pin prick is impossible to measure. 29

III. In the United States, the practice of FGM is proliferating.

Where, as here, a facial challenge to a statute’s constitutionality is mounted, courts must

legislate under the Treaty Clause.

As to interstate commerce, data demonstrate that FGM is a commercial practice in at

As to the Treaty Clause, various conventions against slavery empower Congress to

directs Congress to take appropriate action in furtherance of this goal.

I. Because FGM is inextricably linked with interstate commerce, Congress

Among Congress’s enumerated powers is the power to “regulate Commerce . . . among

commerce. Wickard v. Filburn, 317 U.S. 111, 127-28 (1942).

Commerce Clause empowers Congress to regulate.

A. FGM frequently involves the interstate trafficking of young girls.

As this case demonstrates, FGM frequently involves the involuntary, cross-border

Enforcement (ICE) launched a special program specifically aimed at combatting vacation

enforcement, therefore, that FGM frequently involves interstate travel.